IJEOMA ONYEKWERE UJOUMUNNA v. THE GOVERNOR OF ABIA STATE & ORS
(2018)LCN/12313(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 19th day of December, 2018
CA/OW/236/2013
RATIO
COURT AND PROCEDURE: WHO CAN ENDORSE COURT PROCESSES
“…Claim which is the same thing as writ of summons ought to be signed by either the Claimant or his legal practitioner. We refer this honourable Court to Order 2 Rule 2 of the Abia State High Court (Civil Procedure) Rules 2009 which provides thus: ‘EVERY CLAIM AS IN Form 1 shall be signed by the Claimant or his legal practitioner.’ The Rules of Courts make provisions for the Legal Practitioners or the parties to endorse the Court processes. These Rules of Courts have been given judicial pronouncements. We refer the Court to the case of MTN (NIG) COMM LTD V. C.C. INV. LTD (2015) 7NWLR (PT.1459) 437 @ ratio 22 where it was held thus:’Aside from parties themselves and in case of limited liability companies, only legal practitioners called to the Nigerian Bar can author or authenticate a legal process. Anything other than that would render the legal process incompetent and liable to be struck out.’…An originating process not signed by the party or counsel on his behalf is incompetent. See BOI Ltd vs. Awojugbagbe Light Industries Ltd (2018) 6 NWLR (PT 1615) 220. Such a process signed for a legal practitioner by a person whose name is not indicated in the process is incompetent. See Sun Publishing Ltd vs. Leaders & Co. Ltd (2016) 7 NWLR (PT 1510) 1.”PER RAPHAEL CHIKWE AGBO, J.C.A.
JUSTICES
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
IJEOMA ONYEKWERE UJOUMUNNA – Appellant(s)
AND
1. THE GOVERNOR OF ABIA STATE
2. THE ATTORNEY GENERAL OF ABIA STATE
3. THE GOVERNMENT OF ABIA STATE RESPONDENTS
4. ABA SOUTH LOCAL GOVT. COUNCIL
5. LOCAL GOVERNMENT SERVICE COMMISSION – Respondent(s)
RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment):
While preparing the judgment in this appeal, we discovered that the originating process at the Court below i.e. the writ of summons was signed for counsel by another person. We therefore caused the Registrar of this Court to write the parties to appear before us and address us on the competence of the writ of summons and the effect of its incompetence on the trial at the Court below and this appeal. Upon the parties appearing before us, they were ordered to set down their argument in writing. The appellant first on 6-9-18 filed an affidavit deposed to by Mrs. Nancy Azubuike Christopher the content of which is set down hereunder.
I Nancy Azubuike Christopher (Mrs.) a female, adult Nigerian Citizen of No. 134 Market Road, Aba in Aba South L.G.A. of Abia State do hereby make oath and state as follows:
1. That I am the Litigation Clerk in the Law Firm of Bob – Ogu & Co. by virtue of which potion I am conversant with the facts of this case.
2. That I know as a fact that sometime in August, 2018 our office was served with a hearing notice with respect to this appeal pending in this Court.
3. That I known as a fact that on the 4th day of September, 2018 while discussing this appeal with my Principal, Bob C. Ogu Esq. in his office, at No. 134 Market Road, Aba at about 3.15pm he told me and I verily believed him as follows:
A) That this honourable Court ordered that my Principal, Bob C. Ogu Esq. shall address the Court on the competency of the writ of summons in Suit No. HU/134/2009,
B) That the said writ of summons was signed by one Regis Uzoma Achilihu Esq. for my principal.
C) That sometime in January, 2009 my principal prepared the originating processes of the said Suit No. HU/13/2009 and instructed his colleague in Chambers Regis Uzoma Achilihu Esq. to proceed and file the said processes and travelled for a three months training program in South Africa.
D) That it was on the 2nd day of February, 2009 when the said Regis Uzoma Achilihu Esq. went to file the said originating processes that he discovered that my principal did not sign the said originating processes.
E) That the said Regis Uzoma Achilihu Esq. called our principal on the phone and our principal instructed him to sign the said originating processes for him.
F) The said Regis Uzoma Achilihu signed the said originating processes and indicated in very clear terms that he signed for our principal, Bob Chiedozie Ogu Esq.
G) That he gave Regis Uzoma Achilihu authority to sign the originating processes on his behalf.
4. That I depose to this affidavit in good faith believing the contents to be true and in accordance with the Oaths Act.
————————-
D E P O N E N T
SWORN TO AT
THE COURT OF APPEAL REGISTRY, OWERRI
DATED THIS 6TH DAY OF SEPTEMBER, 2018
BEFORE ME
COMMISSIONER FOR OATHS?
The appellant thereafter filed her written submissions. The Respondents thereafter filed their submissions.
The affidavit deposed to and reproduced above is of no substance. This Court is not competent to determine this appeal on processes outside the record of appeal.
Paragraphs 1.2, 4.1, 4.2 and 4.3 of the appellant’s submission are succinct expositions of the law as it relates to the issue and bears reproduction.
1.2 By the provision of the Rules of Court, the originating processes in any Court ought to be signed by either the Counsel or the party suing. We refer this honourable Court to Order 2 Rule 2 of the Abia State High Court (Civil Procedure) Rules 2009 which proves thus: “Every claim as in Form 1 shall be signed by the Claimant or his legal practitioner.”
By the provisions of this Order it is the Claimant or his legal practitioner that ought to sign the writ of summons. A look at the writ of summons shows the name of the Claimant’s legal practitioner but there is an ‘for’ which shows in clear terms that someone signed for him.
4.1 By the provisions of Order 2 Rule 2 of the Abia State High Court (Civil Procedure) Rules 2009 every claim which is the same thing as writ of summons ought to be signed by either the Claimant or his legal practitioner. We refer this honourable Court to Order 2 Rule 2 of the Abia State High Court (Civil Procedure) Rules 2009 which provides thus: “EVERY CLAIM AS IN Form 1 shall be signed by the Claimant or his legal practitioner.” The Rules of Courts make provisions for the Legal Practitioners or the parties to endorse the Court processes. These Rules of Courts have been given judicial pronouncements. We refer the Court to the case of MTN (NIG) COMM LTD V. C.C. INV. LTD (2015) 7NWLR (PT.1459) 437 @ ratio 22 where it was held thus: “Aside from parties themselves and in case of limited liability companies, only legal practitioners called to the Nigerian Bar can author or authenticate a legal process. Anything other than that would render the legal process incompetent and liable to be struck out.”
4.2 By this provision it is clear that every originating process must be signed by the party or his legal practitioner. In essence, the originating processes in Suit No. HU/13/2009 (Ujoumunna V. Abia State Government & 5 Ors.) must be signed by either the party or his legal practitioner. Any originating process not signed by the party or his legal practitioner is incompetent and ought to be struck out. This provision which is impari materia with the provisions of other Rules of Courts have been given judicial interpretation in a number of Supreme Court authorities. Order to finally settle the issue on signing of Court processes, the then Chief Justice of Nigeria, Hon. Justice Dahiru Musdapher empaneled a full Court of the Supreme Court (that is, 7 Justices of the Supreme Court, including the Chief Justice of Nigeria) with contributions from about 11 amici curiae in the consolidated cases of FBN PLC. V. MAIWADA and FRAMPHINO PHARACEUTICAL V. JAWA INTERNATIONAL LIMITED (2013) 5 NWLR (PT.1348) 444. However, all the decided authorities can be distinguished from the facts of this case.
4.3 The Courts have also stated the processes of signing a Court process. The Supreme Court in SLB CONSORTIUM LTD V. NNPC (2011) 9 NWLR (PT.1252) 317 stated thus: “All processes filed in Court are to be signed as follows:
a) First, the signature of counsel, which may be any contraption;
b) Secondly, the name of the counsel clearly written;
c) Thirdly, who counsel represents;
d) Fourthly, name and address of legal firm.
Once it cannot be said who signed the process, it is incurably bad, and rules of Court that seem to proved a remedy are of no use as a rule cannot override the Legal Practitioner’s Act.”
Section 2(1) of the Legal Practitioners Act requires that a person wishing to engage in the legal practice must have his name on the roll of Legal Practitioners. The only way to identify such a Legal Practitioner is to have his name reflected on the Court processes in issue.?
The main plank of the argument of appellants counsel is that the signature on the writ of summons fits into the requirement in SLB Consortium Ltd vs. NNPC supra that the counsel’s signature may be a contraption.
The signature of a human being cannot be termed ‘a contraption.’
An originating process not signed by the party or counsel on his behalf is incompetent. See BOI Ltd vs. Awojugbagbe Light Industries Ltd (2018) 6 NWLR (PT 1615) 220. Such a process signed for a legal practitioner by a person whose name is not indicated in the process is incompetent. See Sun Publishing Ltd vs. Leaders & Co. Ltd (2016) 7 NWLR (PT 1510) 1.
The trial Court acted without jurisdiction in hearing suit no. HU/13/2009. It ought to have applied the principles contained in Madukolu vs. Nkemdilim (1962) 2 SC NLR 341 to strike out the suit. Both this appeal and suit no. HU/13/2009 are struck out for want of competence.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my Brother RAPHAEL CHIKWE AGBO JCA. I agree with his reasoning and conclusion. Without doubt, the Court below was divested of jurisdiction, which rendered the entire proceedings null and void.
Appearances:
B.C. Ogu with him, M.O. Eze and C.B. OwualahFor Appellant(s)
P.U. Ogubunka (D.C.L. Abia State) with him, O.N. Obasi (SSC)For Respondent(s)
